Review urged on city cases

Melissa HarrisThe Baltimore Sun

The state's top public defender is calling on Baltimore State's Attorney Patricia C. Jessamy to review closed homicide cases handled by one of her former prosecutors after it was discovered that evidence favorable to the defense was withheld or not turned over in two murder cases in 2001.

State Public Defender Nancy S. Forster said that she also has asked lawyers on her staff to search for any of Cassandra Costley's cases that are on appeal or before a judge for "post-conviction relief" - a last-ditch effort by defendants to have guilty findings overturned. Forster said she would personally review those cases, if any were found.

She said she would like to do more, but any unrevealed evidence that could exonerate someone would be in the hands of prosecutors or city police, not the public defender's office.

"I would hope [prosecutors] would do a pretty exploratory review of cases while [Costley] was in the homicide division to make sure that everything that is in the file that should have been turned over was, in fact, turned over to the defense," Forster said. "And I hope that any police officers involved in those cases, given that police withheld information from Miss Costley in one of them, will be asked whether they turned over everything to prosecutors."

Jessamy's spokeswoman Margaret T. Burns said that a review of Costley's closed cases has not been done, nor has Jessamy ordered one. Jessamy declined to be interviewed for this article.

Forster's call comes days after Jessamy's office announced it would retry Kenneth D. Perry, 43, who was convicted and sentenced to life without parole in 2001 for killing Kelly Bunn and his former girlfriend, LaShawn Jordan, as Jordan's 4-year-old daughter watched.

After Perry exhausted his appeals, his attorney filed requests for post-conviction relief and documents associated with the case.

As prosecutor Lisa Phelps began reviewing the files, she discovered records from interviews with the 4-year-old eyewitness, Jewel Williams, in which the girl described her mother's killer as wearing a mask.

After an exhaustive review of documents, Phelps concluded that Costley, who now works for Forster in the public defender's office, never turned the materials over to the defense.

Prosecutors have declined to comment on who conducted the interviews, how many there were, whether Costley - who tried the case - was present for them, and when they were conducted. Vickie Wash, who is no longer with the office, was co-counsel on the case.

"We will never be able to say with 100 percent certainty, more than a decade later, what exactly occurred, but it is critically important in the interest of justice, that ... we proceed with the new trial," Burns said.

According to Sun articles in 2001 and 2002, two Circuit Court judges reprimanded Costley after she did not turn over - until two days before trial and only after repeated requests from the defense - police reports showing that detectives had developed suspects other than the people being tried. The police reports also contained a statement from a witness, who described the shooter as a bald man just below 6 feet tall and of medium build, about 180 pounds. The accused, however, wore his hair in braids, was 6-foot-7 and weighed 240 pounds.

The suspect's defense attorney, Gregory Fischer, also learned that the state's star witness had been picked up for prostitution the day she signed a photo-lineup identifying the shooter. After making the identification, police didn't charge the woman, who had a history of psychiatric problems, with the crime.

Fischer had to subpoena the information, which should have been turned over without request by the prosecutor, Fischer said. Costley had said that police had not told her about the prostitution arrest, Fischer said.

Complicating matters, as the case was awaiting trial, the police department's folder on the shooting was moved twice - and ultimately lost. Circuit Judge Wanda K. Heard assigned blame to police and prosecutors, acknowledging that police had withheld important information from Costley.

"If I dismiss this case, it certainly would provide a shocking deterrent effect to the Police Department when it comes down to providing information to the state so that it can be properly disclosed to the defense," Heard said, according to a 2002 Sun series Justice Undone. "You would agree that forever, now and today, the Noakes-Hill case would stand as a reason why the police ought to sit down with the state's attorney's office and be sure, absolutely, positively sure, that there are reports disclosed and shown ... It would ensure justice in this city for any other defendant that might be charged."

Heard did not dismiss the case, but she ruled key pieces of evidence inadmissible. Costley was left with little to present at trial and had to drop the charges.

Soon after, Costley lost another murder case against Noakes. Jessamy then demoted Costley, assigning her to felony drug indictments, a position in which she would not take cases to trial.

Costley was then hired by the public defender's office.

Forster declined to comment on whether she would take any disciplinary action against Costley.

Forster said that eight years ago, the "practice" in Jessamy's office was to read evidence disclosure rules in a very "myopic way."

"It was very frustrating to the defense, and I do believe they have done better," Forster said. "Also the rules have recently changed, which should make this sort of thing never happen again."

When Costley changed jobs, Burns said that her supervisor and division chief thoroughly reviewed all of her open homicide cases.

"No further in-depth review was done at that time or has been requested or ordered," Burns said.

Burns said that the established method for reviewing closed cases is an appeal or request for post-conviction relief, both of which are the purview of defense attorneys.